Expenses related to the structuring and implementation of reverse logistics cannot be considered inputs and, therefore, do not generate PIS and Cofins credits, says the Federal Revenue Service. This understanding is contained in Consultation Solution Cosit 215, released in December of last year. This is the first publication by the Revenue Service on the subject, which has not yet reached the Administrative Council of Tax Appeals (Carf).
Reverse logistics is a concept that created the practice of reinserting post-consumer waste or materials into new production cycles when they cannot be disposed of in the regular trash. Since 2010, logistics has been a legal obligation for companies responsible for producing waste, according to Law No. 12,305/2010. Some of the sectors that carry out reverse logistics are manufacturers of toxic products, such as batteries, cell phones, batteries and light bulbs.
The consultation solution answers the question of a company that manufactures and imports fluorescent, sodium and mercury vapor and mixed light bulbs. For the IRS, the expenses with reverse logistics by the company, although they are a legal requirement, are not inherent to the production process, and are merely a way of ensuring the environmentally appropriate final destination for products that have already been consumed. In other words, its position is that the expenses in question do not fall within the concept of input defined by the Superior Court of Justice (STJ).
In 2018, the STJ ruled that, for the purposes of PIS and Cofins crediting, everything that is essential for the development of the activity must be considered an input, meeting the criteria of essentiality and relevance. The decision was made in Special Appeal 1,221,170.
Through consultation solutions, taxpayers can ask the IRS questions about specific situations. The answers are only binding on the companies that made the consultation, but must be observed by tax inspectors. Furthermore, even though it is not binding on all taxpayers, the IRS's position on the subject is accessible, which can help lawyers, consultants and decision-makers in similar situations.
The discussion on reverse logistics has never been analyzed by Carf. In addition to the lack of standards, advisors point out two main reasons for this to happen: the first is that it is a risky thesis, and few companies would have the initiative to take PIS and Cofins credits.
The second reason is that reverse logistics is a practice recently regulated by Law No. 12,305/2010, and it would take some time for the Carf to issue any fines on the matter. According to one advisor, the Carf may soon issue a ruling on the legality of the Federal Revenue Service's understanding, since companies should start being fined based on the Consultation Solution, which means that the resources will reach the Carf.
Legal imposition
For Matheus Bueno, partner at Bueno Tax Lawyers, the consultation solution contradicts other positions of the IRS. He explains that in Consultation Solution Cosit 1011, from November 2021, the agency considers that, as it is a legal imposition, fees for the use of port infrastructure should be considered an input.
With this, he argues that when the expense arises from a legal obligation, under penalty of fine, it should be considered essential for the company's activity, being an input. "How is it irrelevant if the company is required by law to comply?", he said.
“I had the feeling that we had moved from a production cycle to a production straight line. So, if you have a factory and you have to dispose of effluent, this is part of the production cycle. And this production cycle has to be sustainable,” says Alexandre Monteiro, partner at Bocater Advogados.
For him, by considering that reverse logistics is not part of the company's production process, the IRS ignores an important part of the company's own activity, which allows it to be sustainable, contradicting ESG (environmental, social and governance) practices, used to measure a company's environmental, social and governance practices. In other words, for him, the positioning not only hurts the company's cash flow, but also makes it difficult for it to exercise its environmental responsibility.
“I think that COSIT's vision could have considered the social values that impose financial costs necessary to maintain the company's revenue generation, which, in turn, is also the source of tax collection in this case”, says Luciana Aguiar, from Bocater Advogados, in agreement with the point raised by Monteiro.